Under the U.S. Supreme Court: Should America assassinate terrorists?

WASHINGTON, Nov. 18 (UPI) -- Does the Obama administration have the power to target a U.S. citizen, or any terror suspect, for assassination? Is the targeting legal? Is it moral?

The administration purportedly has marked Anwar al-Awlaki for death. A Muslim cleric in Yemen with dual Yemeni-U.S. citizenship, Awlaki has moved from calling for attacks on U.S. targets to actually participating in them, The Washington Post reports.

In all fairness, the same questions that plague a government's plan for the assassination of a U.S. citizen also could be asked of any policy that leaves Awlaki at large. Would not targeting him for killing, or at least leaving open the possibility, violate a president's constitutional responsibilities? Would it be moral not to do everything in the government's power to keep him from committing additional acts of terror?

Born in New Mexico and believed to be hiding in Yemen since 2004, Awlaki has been linked to the Army psychiatrist accused of massacring 13 people at Fort Hood, Texas, last November; the attempted Christmas bombing last Christmas of an airliner headed for Detroit, foiled when bomb materials under the suspect's clothes caught fire; a Times Square car bombing attempt, and plastic explosives found on two cargo planes bound for the United States from Yemen in October.

Awlaki is beginning to acquire the mantle of a godfather of terror, not unlike Osama bin Laden.

He uses the Internet to inspire the commission of terror -- including YouTube videos, a Facebook page and a blog. He is known to be an operative of al-Qaida in the Arabian Peninsula.

But should Awlaki, a U.S. citizen, be killed as a matter of national policy without due process? In an ongoing court challenge in the nation's capital, civil liberties advocates say no.

Leftist critics of the administration policy say targeting Awlaki for death is simply "extra-judicial killing" -- execution without the involvement of a court.

Supporters of the policy say such critics have plumbed new depths of absurdity. Since when, they ask, have governments needed a court's permission to kill enemies during wartime, especially when that enemy is actively trying to kill a nation's citizens?

Complicating the issue is a series of executive orders dating back to President Gerald Ford in 1976 banning assassinations by U.S. agencies. In executive order 11905, designed to clarify U.S. foreign-intelligence activities, Ford explicitly said, "No employee of the United States government shall engage in, or conspire to engage in, political assassination."

The ban came as reports emerged of CIA attempts to kill Cuban dictator Fidel Castro in the 1960s.

President Jimmy Carter followed up the Ford ban in 1978 with one of his own, executive order 12036. President Ronald Reagan, in 1981's executive order 12333, was just as explicit as Ford, saying, "No person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination."

Reagan's executive order has never been superseded.

But the bans on assassination have not been strictly enforced, especially concerning terrorists. President George W. Bush targeted bin Laden, for example, with White House attorneys claiming an exemption to the assassination ban because of the war on terror.

The Bush White House also claimed wide authority for any action under the Authorization for Use of Military Force Against Terrorists resolution enacted by Congress one week after the Sept. 11, 2001, terror attacks. The authorization targets those behind the Sept. 11 attacks, not separate threats like Awlaki -- unless the resolution is broadly interpreted to include anyone linked to al-Qaida .

The resolution says, "That the president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

In a 2002 report to the U.S. Congress, the Congressional Research Service said the presidential bans may have been narrow.

"The term 'assassination' is not defined in (Reagan's executive order), nor was it defined in the predecessor orders," the report said. "In general, it appears that an assassination may be viewed as an intentional killing of a targeted individual committed for political purposes. However, the scope of the term seems to be the subject of differing interpretations, both generally, and depending upon whether the killing at issue took place in time of war or in time of peace.

"For example," the report said, "it might be contended that the Ford executive order and its successors were responding to concerns raised with respect to killing of foreign officials or heads of state, and may not have been intended to extend to killing of others. Such an interpretation would be consistent with the focus of the Church Committee's (U.S. Senate Select Committee on Intelligence's) investigation (in the 1970s), to which the Ford executive order responded."

Targeting Awlaki, and the targeting of specific insurgents in Afghanistan through the use of missile-firing drones, is not in the national interest, at least one critic says.

In an op-ed piece in February for The New York Times titled "An Eye for an Eye," columnist Roger Cohen said targeted killings have intensified under the Obama administration, and "President Obama, who campaigned against the 'dark side' of the war on terror and has insisted that America must lead by example as a nation of laws, owes Americans an accounting of his targeted killing program."

Using parameters that could be applied in the Awlaki case, Cohen adds, "I want to know that any target is selected because there is verifiable intelligence that he's actively planning a terrorist attack on the United States or its allies; that the danger is pressing; that arrest is impossible; and that civilian lives are not wantonly risked."

A lot of the questions surrounding government assassinations may or may not be answered as the court case in Washington plays itself out. Government lawyers in the case repeatedly refused to say whether Awlaki has been targeted for assassination.

The lawsuit was filed on behalf of Awlaki's father, Nasser al-Awlaki, who is in Yemen, by the American Civil Liberties Union and the Center for Constitutional Rights, both headquartered in New York.

The public interest groups want a federal judge to rule the U.S. Constitution and international law forbid the U.S. government from using targeted killings outside of armed conflicts, except to head off imminent threats of death, and then only as a last resort, ABC News reported.

The ACLU's Jameel Jaffer argued in court Nov. 8 if a federal judge doesn't act, it would mean any president would have the "unreviewable authority to order the assassination of any U.S. citizen."

"If the Fourth and Fifth amendments mean anything at all, surely they mean there are limits to the government's power to use force against its own citizens," The New York Times quoted Jaffer as saying.

The amendments guarantee someone's legal rights must be taken into account as part of "due process."

Government lawyers argue the case should be dismissed, saying the father has no legal right to file the suit when Awlaki could do so himself -- even though he is a fugitive in Yemen who says he doesn't recognize the authority of U.S. courts.

U.S. District Judge John Bates, appointed to the federal bench by President George W. Bush in 2001, seemed to have the same doubts about the grounds for the suit, ABC said.

"Why can't Anwar al-Awlaki simply emerge from hiding," he asked, "and have full access to the courts?"

Government lawyer Douglas Letter told Bates if Awlaki surrendered it would resolve the case.

"He is under no threat from lethal force," he said.

On the same day as the hearing, Awlaki posted a lengthy video on the Internet. Speaking in Arabic and wearing traditional Yemeni clothing, Awlaki told his followers they didn't need clerical permission to kill Americans, the Times said.

The logic behind the Washington challenge to government targeted assassinations has proved to be too much for some people, including those normally expected to be in Awlaki's corner.

That includes Karima Bennoune, board member for the Center for Constitutional Rights, which along with the ACLU brought the suit, the British newspaper, The Guardian, reported.

A law professor at Rutgers but of Algerian descent, Bennoune said: "I support the important work the center has done on torture and extraordinary rendition, but I expressed grave concern at CCR offering to represent Awlaki's interests pro bono. Anwar al-Awlaki is not a detainee; he is still at liberty and able to gravely harm others by inciting and advocating murder."

She pointed to an article Awlaki published in al-Qaida's English language magazine, Inspire, in July calling for the assassination of several people, The Guardian reported, including a woman cartoonist in Seattle and author Salman Rushdie. At about this time, CCR was offering to represent Awlaki's father, she said.

"Since the inception of the case, there has been increased mystification of who Anwar al-Awlaki is in liberal and human rights circles in the United States," Bennoune said. "This may in part have resulted from the fact that a highly reputable organization like CCR was willing to represent his interests, and described him only as 'a Muslim cleric' or 'an American citizen' and repeatedly suggested that the government did not possess evidence against Awlaki."

Bennoune is joined by Chetan Bhatt, director of the Center for the Study of Human Rights at the London School of Economics. The Guardian said Bhatt was asked by the CCR for advice on Awlaki.

"I have considerable respect for CCR," Bhatt said. "But in this case they have made a serious error of ethical judgment. Does a highly respected organization, founded in the midst of historic struggles for civil rights and racial justice, now wish to be perceived by some as al-Qaida's legal team? Can you fight extra-judicial assassinations by standing alongside someone who advocates extra-judicial assassinations?"

Judge Bates should rule on the U.S. government's motion for dismissal within the next few weeks.

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